David B. Summer, Jr., and Faye A. Flowers, both of Columbia, for
Respondent.

WILLIAMS, J.: On
appeal from the administrative law court (ALC), the Department of Revenue (the
Department) argues ESA Services, LLC (ESA) is not entitled
to claim certain Job Development Credits (JDCs) pursuant to the South Carolina
Enterprise Zone Act of 1995[1] (the Act) because ESA failed to meet
specific obligations as required by the Revitalization Agreement (the
Agreement) executed between ESA and the Advisory Coordinating Council for
Economic Development (Council). We affirm.

STATUTORY BACKGROUND

In 1995,
the Legislature passed the Act to provide tax incentives for businesses seeking
to locate or expand to "rural, less developed counties" in South
Carolina. See S.C. Code Ann. § 12-10-20 (2000 & Supp. 2009). To
qualify for tax incentives under the Act, businesses were required to meet the
eligibility requirements established by section 12-10-50(A)(1)-(4) of the South
Carolina Code (Supp. 2009). Particularly, section 12-10-50(A)(3) required
businesses to enter into a revitalization agreement with Council. The Act gave
Council absolute discretion in deciding whether to enter into a revitalization
agreement. S.C. Code Ann. § 12-10-60(A) (Supp. 2009). Although the terms of
each individual agreement differed, every revitalization agreement uniformly
required each business to create a minimum number of jobs and to make a minimum
capital investment by a certain date to claim JDCs. § 12-10-50(A)(3); S.C. Code
Ann. § 12-10-80(A) (Supp. 2009). Pursuant to the Act, once a business met the
minimum job requirement and minimum capital investment set forth in the revitalization
agreement, the business was eligible to claim JDCs. § 12-10-80(A).

FACTS

ESA is a limited
liability company authorized to do business in South Carolina.[2] At some point prior to 2001, ESA began negotiations with the State of South
Carolina in an attempt to relocate its national corporate headquarters from
Fort Lauderdale, Florida, to Spartanburg, South Carolina, as well as to expand
its South Carolina operations. In furtherance of these negotiations, ESA
submitted an application to Council[3] on July 19, 2001, seeking approval to participate in the South Carolina
Enterprise Zone Program. In its application, ESA stated it intended to build a
$13 million corporate headquarters facility as well as to create an estimated two
hundred new jobs in South Carolina.

One
week after receiving ESA's application, Council sent a letter to Bill Kastler,
an accountant with Pricewaterhouse Coopers in Spartanburg, who assisted ESA in
the application process. In the letter, Council stated that it approved ESA's
application "with the contingency that only positions paying above $11.58
an hour would qualify for Job Development Credits."The letter
further stated that Council intended to enter into a final agreement with ESA
within eighteen months of the date of the original application, and ESA could
accept the terms, as outlined in the letter, by signing and returning a copy of
the letter to Council. Despite Council's contention that it sent this letter
to ESA, no evidence was presented that ESA received the letter, and the
Department never established that an executed copy of the letter was signed and
returned to Council.[4]

Subsequently, on August 15, 2002, ESA notified Council
that it would increase its capital investment from $13 million to $14.49
million and could commit to the creation of two hundred fifteen as opposed to two
hundred new jobs. Council agreed to this increase by letter dated August 29,
2002, which also discussed wages and JDCs, but did not mention the $11.58
minimum wage contingency. During the final negotiations between ESA and
Council, ESA relocated to Spartanburg, South Carolina. Each party executed
their respective portion of the Agreement, and Council returned the fully
executed Agreement to ESA on July 16, 2003, with an effective date of July 19,
2001.Council attached a cover letter to the Agreement, in which
Council stated that ESA could begin claiming JDCs after it had certified to
Council, in writing, that it had created the minimum two hundred fifteen
full-time jobs and had met the minimum $14.49 million capital investment. No
other requirements or contingencies were stated in the cover letter.

The body of the
Agreement set forth certain stipulations regarding ESA's entitlement to JDCs. The
Agreement specifically defined what constituted the "Minimum Job
Requirement" and permitted ESA to fall below the minimum requirement by
15% or exceed it by 50% and still remain eligible to claim JDCs. ESA also
agreed that prior to making a claim for JDCs, it would notify Council when it
met the minimum job requirement and the minimum capital investment and would
provide all documentation Council required to verify compliance. Within thirty
days of Council's satisfaction that the requirements were met, Council was
required under the Agreement to certify to the Department that ESA was eligible
to begin claiming JDCs.

The
Agreement also included four exhibits. Exhibit A, entitled "Project
Details," was referred to numerous times in the Agreement and reiterated
the cover letter's requirement that ESA create a minimum of two hundred fifteen
new jobs at its headquarters and invest a minimum of $14.49 million in the
project. Exhibit B, entitled "Approved Employment Positions," listed
three job titles--officers, managers, and staff--with each title employing ten,
forty, and one hundred sixty-five individuals, respectively. Within each job
title, Exhibit B set forth the wage bracket for that position with officers
earning $220,000 per year, management earning $73,000 per year, and staff
earning $30,000[5] per year. Exhibit B also delineated the estimated job development credit percentages
created by these positions. Exhibit C was a blank copy of the Employer
Quarterly Report, which ESA had to file with Council to claim JDCs. Exhibit D,
entitled "Special Provisions and Amendments," listed several
amendments to the Agreement, but it contained no reference to a minimum wage
contingency.

The Agreement
expressly stated that it, along with its attached exhibits, constituted the
entire agreement as to matters contained in the Agreement and superseded all
prior agreements and understandings, written or oral, between the parties. Nowhere
in the Agreement or in the four attached exhibits did the Council or ESA
expressly define a minimum wage contingency.

Soon after the
parties executed the Agreement, ESA submitted documentation to Council to prove
it had met the minimum job requirement and minimum capital investment under the
Agreement.[6] On September 30, 2003, Council responded and informed ESA it had reviewed
ESA's documentation and approved ESA's request to claim JDCs. Further, Council
stated it would begin calculating JDCs, effective October 1, 2003, and it would
notify the Department of the certification.

Council
approvedESA's first two claims for refunds.[7]
However, when ESA submitted a refund claim for the second quarter of 2004 for
$933,962 based upon the payment of $27,110,506 in wages to one hundred ninety eligible
employees, the Department did not issue a refund.[8]
Council then reviewed ESA's quarterly report and determined ESA had claimed
JDCs for some jobs that paid less than the Spartanburg per capita hourly wage
of $11.58 per hour.

Thereafter,
Jackie Calvi, the program manager for Council's Grants Management Team, spoke
with representatives of ESA and requested ESA amend its returns to delete any
JDC claims for jobs that ESA had paid hourly wages less than $11.58. However,
Calvi told ESA that all the new jobs it had created, including those paying
$11.58 or less, could be counted toward the two hundred fifteen minimum job
requirement required by the Agreement. Calvi relayed this information to the
Department. ESA amended its returns, deleting any claims for new jobs that
paid less than $11.58 per hour. The amendments resulted in excess refunds owed
to the State in the amounts of $2,833 (fourth quarter of 2003) and $3,397 (first
quarter of 2004).

After
ESA filed its amended returns, the Department notified ESA it intended to
conduct a field audit of ESA.[9]
In late June 2005, Edward Barwick conducted the audit at ESA's headquarters in
Spartanburg and issued a report on September 14, 2005. In his report, Barwick
found the following: (1) ESA's amendments to its quarterly returns resulted in
taxes owing to the State in the amount of $2,833 for the fourth quarter of 2003
and $3,397 for the first quarter of 2004; (2) all JDC claims should be denied
because ESA failed to create the two hundred fifteen required jobs pursuant to
the Agreement; and (3) ESA was not entitled to claim JDCs under the Agreement
because it ceased to exist as a taxpayer during the claims period.

ESA
timely filed a protest of the findings and proposed assessment contained in the
Department's report. In its final agency determination, the Department
affirmed the field auditor's findings and denied ESA's claims. ESA appealed to
the ALC. On October 6 and 7, 2008, the ALC conducted a hearing and
subsequently reversed the Department's denial of ESA's claims on the grounds
that ESA had fully complied with the terms of the Agreement. The ALC denied
the Department's motion to reconsider, and this appeal followed.

ISSUES ON APPEAL

The Department
raises three issues on appeal:

(1)

Did the ALC err in finding ESA complied with the terms
of the Agreement because the ALC failed to properly construe Exhibit B?

(2)

Are the ALC's findings of fact supported by
substantial evidence?

(3)

Did the ALC err in failing to defer to the
Department's longstanding administrative practices?

STANDARD OF REVIEW

This
court's scope of review is set forth in section 1-23-610(B) of the South
Carolina Code (Supp. 2009). That section provides:

The
review of the administrative law judge's order must be confined to the record.
The court may not substitute its judgment for the judgment of the administrative
law judge as to the weight of the evidence on questions of fact. The court of
appeals may affirm the decision or remand the case for further proceedings; or
it may reverse or modify the decision if the substantive rights of the
petitioner have been prejudiced because the finding, conclusion, or decision
is:

(a) in
violation of constitutional or statutory provisions;

(b) in
excess of the statutory authority of the agency;

(c)
made upon unlawful procedure;

(d)
affected by other error of law;

(e)
clearly erroneous in view of the reliable, probative, and substantial evidence
on the whole record; or

(f)
arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.

Id.

LAW/ANALYSIS

I. Terms of the Agreement

The
Department first contends the ALC erred in concluding ESA abided by the terms
of the Agreement when a plain reading of the Agreement demonstrates ESA was
required to create two hundred fifteen jobs paying at least $30,000 per year.
We disagree.

When
a contract or agreement is clear and capable of legal construction, the court's
only function is to interpret its lawful meaning and the intent of the parties
as found within the agreement. Smith-Cooper v. Cooper, 344 S.C. 289,
295, 543 S.E.2d 271, 274 (Ct. App. 2001). However, when an agreement is
ambiguous, the court should determine the parties' intent. Ellie, Inc. v.
Miccichi, 358 S.C. 78, 94, 594 S.E.2d 485, 493 (Ct. App. 2004). A contract
is ambiguous when it is capable of more than one meaning or when its meaning is
unclear. Jordan v. Sec. Group, Inc., 311 S.C. 227, 230, 428 S.E.2d 705,
707 (1993). "Whether a contract is ambiguous is to be determined from the
entire contract and not from isolated portions of the contract." Farr
v. Duke Power Co., 265 S.C. 356, 362, 218 S.E.2d 431, 433 (1975).

It
is a question of law for the court whether the language of a contract is
ambiguous. Hawkins v. Greenwood Dev. Corp., 328 S.C. 585, 592, 493
S.E.2d 875, 878 (Ct. App. 1997). Once the court decides the language is
ambiguous, evidence may be admitted to show the intent of the parties. Id. at 592, 493 S.E.2d at 878-79. The determination of the parties' intent is then
a question of fact. Id. at 592, 493 S.E.2d at 879. On the other hand,
the construction of a clear and unambiguous contract is a question of law for
the court. Gardner v. Mozingo, 293 S.C. 23, 25, 358 S.E.2d 390, 392
(1987).

The crux of the Department's argument is the Agreement
expressly included a wage contingency and because ESA failed to comply with
this contingency, the Department properly denied ESA's claim for JDCs.
Specifically, the Department highlights Exhibit B in the Agreement, entitled
"Approved Employment Positions," which lists three job categories,
each having their own wage bracket.[10] The Department
contends the $30,000 wage bracket in Exhibit B proves ESA was required to
create two hundred fifteen positions paying at least $15 per hour to be
eligible to claim JDCs.

Despite the
Department's argument, we find the plain language of the Agreement is silent
regarding an established wage contingency. The parties agreed upon two
material terms in their Agreement: a minimum capital investment of $14.49
million and the creation of at least two hundred fifteen jobs. This conclusion
is supported by the plain language of the Agreement and its respective
exhibits.

While
the Department urges this court to construe Exhibit B as mandating a minimum
wage contingency of $15 per hour, we find the Department's construction of
Exhibit B would require us to read a term into the contract that does not
exist. Exhibit B fails to state that ESA must create the exact number of
"Approved Employment Positions" at the stated wage brackets to
fulfill ESA's minimum job requirement.[11] Moreover, the
definition of "Minimum Job Requirement" in the main body of the
Agreement does not reference Exhibit B and does not include any mention of a
wage contingency as a prerequisite to fulfilling the minimum job requirement.
If the parties intended to incorporate a minimum wage contingency as a material
term in the Agreement, we find this contingency would have been clearly set
forth and defined as such in Exhibit B or within the main body of the
Agreement.

A
reading of other sections in the Agreement leads us to this same conclusion. SeeS. Atl. Fin. Servs. Inc. v. Middleton, 356 S.C. 444, 447, 590 S.E.2d 27,
29 (2003) (finding a contract should be read as a whole document so that "one
may not, by pointing out a single sentence or clause, create an ambiguity").
Paragraph 3.4 of the Agreement states ESA must "maintain the Project
substantially as proposed in the [initial] [a]pplication and as outlined in
Exhibit A . . . ." Exhibit A does not mention a wage contingency, but it
does reference the minimum job requirement and minimum capital investment. Additionally,
the initial application, which is also referenced in Paragraph 3.4 of the
Agreement, contains a Section K entitled, "Projected New Jobs and
Payroll." (emphasis added). Section K from the initial application sets
forth the same job categories as Exhibit B in the Agreement and instructs ESA
to complete the section by listing the "average wage per hour and estimated annual payroll for new jobs." (emphasis added). While describing the
wages and payroll as "average" and "estimated," Section K, in
no uncertain language, instructs ESA that the total number of jobs listed in
that section should reflect the minimum job requirement.

Accordingly,
we hold the ALC properly determined the Agreement's plain language did not
impose a wage contingency on ESA. SeeSilver v. Aabstract Pools
& Spas, Inc., 376 S.C. 585, 591, 658 S.E.2d 539, 542 (Ct. App. 2008)
("In construing and determining the effect of a written contract, the
intention of the parties and the meaning are gathered primarily from the
contents of the writing itself, or, as otherwise stated, from the four corners
of the instrument, and when such contract is clear and unequivocal, its meaning
must be determined by its contents alone; and a meaning cannot be given it
other than that expressed.") (internal citation and internal quotation
marks omitted).[12]

ESA
concedes in its brief that its interactions with Council after entering into
the Agreement modified the contract between the parties. ESA claims that while
the Agreement did not state a wage contingency, ESA agreed after it submitted
its claims for JDCs to impose an $11.58 wage contingency. This concession was
based on Council's assurance that although ESA's jobs paying less than $11.58
would not be included when calculating its JDCs, those jobs would still count
towards the minimum job requirement. We agree and find Council and ESA's
decision to amend the Agreement to include a wage contingency was a valid
modification of the contract.

Written contracts may be orally modified by the parties, even if
the writing itself prohibits oral modification. S.C. Nat'l Bank v. Silks, 295 S.C. 107, 109-10,
367 S.E.2d 421, 422 (Ct.
App. 1988). Any modification of a written contract must satisfy all fundamental
elements of a valid contract in order for it to be enforceable, including a
meeting of the minds between the parties with regard to all essential terms of
the agreement. Player v. Chandler, 299 S.C. 101, 104-05, 382 S.E.2d
891, 893 (1989). Thus, "[w]hile a written contract can be orally
modified, there must be a meeting of the minds as to the modification." First
Union Mortgage Corp. v. Thomas, 317 S.C. 63, 70, 451 S.E.2d 907, 912 (Ct. App.
1994).

Here,
ESA and Council,[13] as parties to the Agreement, mutually agreed to modify the Agreement to include
an $11.58 wage contingency with the express understanding this amendment would
not affect ESA's ability to meet the minimum job requirement. Both ESA and
Council testified before the ALC they were in agreement on this modification
and its effect on ESA's ability to claim JDCs for those jobs paying less than
$11.58. This course of conduct between ESA and Council demonstratesthey
had a "meeting of the minds" as to the modified terms of the
Agreement.

To
reiterate, we hold the plain language of the Agreement, including Exhibit B,
did not contain a wage contingency.Despite the lack of a stated wage
contingency, we findthe parties mutually agreed to orally modify the
Agreement to include the $11.58 wage contingency with the understanding this
contingency would have no effect on ESA's ability to satisfy its minimum job
requirement. Accordingly, we hold the ALC properly construed Exhibit B in
concluding ESA complied with the terms of the Agreement.

II. ALC's Findings of Fact

The
Department next argues the ALC erred as a matter of law because its findings of
fact were not based on the plain language of the Agreement, which prevented its
decision from being based on substantial evidence. We disagree.

In
an appeal from the final decision of an administrative agency, the standard of
appellate review is whether the ALC's findings are supported by substantial
evidence. S.C. Code Ann. § 1-23-610(B) (Supp. 2009). Although this court
shall not substitute its judgment for that of the ALC as to findings of fact,
we may reverse or modify decisions that are controlled by error of law or are
clearly erroneous in view of the substantial evidence on the record as a whole.
Id. In determining whether the ALC's decision is supported by
substantial evidence, this court need only find, considering the record as a
whole, evidence from which reasonable minds could reach the same conclusion
that the ALC reached. DuRant v. S.C. Dep't of Health & Envtl. Control,
361 S.C. 416, 420, 604 S.E.2d 704, 706 (Ct. App. 2004).

The
Department takes issue with several findings of fact in the ALC's order.
However, the Department failed to raise these discrepancies in its motion to alter
or amend pursuant to Rule 59(e), SCRCP. Because the ALC was never allowed to
clarify any discrepancies in its order, these issues are not properly before
this court on appeal. SeeHome Med. Sys., Inc. v. S.C. Dep't of
Revenue , 382 S.C. 556, 563, 677 S.E.2d 582, 586 (2009) (permitting Rule
59(e), SCRCP, motions in ALC proceedings); Revis v. Barrett, 321 S.C.
206, 210, 467 S.E.2d 460, 463 (Ct. App. 1996) (holding issue was not preserved
on appeal when appellants never filed a motion to alter or amend the judgment
to clarify the order pursuant to Rule 59, SCRCP, nor sought clarification
pursuant to Rule 60(a), SCRCP); Nelums v. Cousins, 304 S.C. 306, 307-08,
403 S.E.2d 681, 681-82 (Ct. App. 1991) (finding trial court's alleged failure
to clarify discrepancies in written order was not preserved when party made no
motion to amend the judgment).

Even
if these issues were preserved for our review, any inaccuracies in the ALC's
findings of fact were not material and thus did not amount to prejudicial error
in view of the substantial evidence on the whole record. SeeMcCall
v. Finley, 294 S.C. 1, 4, 362 S.E.2d 26, 28 (Ct. App. 1987) ("[W]hatever
doesn't make any difference, doesn't matter.").

III. Deference to the Department's
Administrative Practices

Last,
the Department contends the ALC erred in failing to defer to the Department's
longstanding administrative practice of auditing qualifying businesses under
the Act. We disagree.

To
resolve this issue, it is instructive to identify the role of Council, the
Department, and a qualifying business under the Act. Pursuant to the Act,
"the terms and provisions of each revitalization agreement must be
determined by negotiations between [C]ouncil and the qualifying business."
§ 12-10-60(A) (emphasis added). Furthermore, Council may establish criteria
for the determination and selection of qualifying businesses and the approval
of Agreements. S.C. Code Ann. § 12-10-100(A) (2000). "The decision to
enter into a revitalization agreement with a qualifying business is solely
within the discretion of [C]ouncil based on the appropriateness of the
negotiated incentives to the project and the determination that approval of the
project is in the best interests of the State." § 12-10-60(A) (emphasis
added).

Once
a qualifying business has certified to Council the business has met the minimum
job requirement and minimum capital investment provided for in the
revitalization agreement, the business may claim job development credits. §
12-10-80(A). If a qualifying business claims greater than ten thousand dollars
in a calendar year, it must furnish to Council and to the Department a report
that itemizes the sources and uses of the funds. § 12-10-80(A)(9). The
Department shall audit each qualifying business with claims greater than ten
thousand dollars in a calendar year at least once every three years to verify
proper sources and uses of the funds. Id.

Moreover, in the
event a qualifying business fails to achieve the level of capital investment or
employment set forth in the revitalization agreement, Council may terminate the
revitalization agreement and reduce or suspend all or any part of the
incentives until the time the anticipated capital investment and employment
levels are met. S.C. Code Ann. § 12-10-90 (2000).

While the Department
argues the ALC erred in failing to give it deference in its interpretation and
administration of the Act,[14] this issue was not before the ALC. Rather, the ALC
was faced with determining whether Council and ESA had expressly agreed to a
wage contingency as part of fulfilling the minimum job requirement in the
Agreement. The Legislature charged Council with the task of negotiating the
terms of the Agreement and approving ESA's project if it was in the best
interests of the State. See § 12-10-60. Only after Council had made
that decision and executed the Agreement could the Department exercise its
authority to audit ESA and accordingly adjust ESA's entitlement to JDCs. As
set forth in section 12-10-80(A)(9), the Department's duty was to ensure ESA
was properly using the JDCs by "verify[ing] proper sources and uses of the
funds," and the Department never asserted ESA was not properly using the
JDCs.

This
court is aware the Department has the statutory authority to audit qualifying
businesses pursuant to the Act and make appropriate adjustments when a
qualifying business is not complying with the terms of its revitalization
agreement as agreed upon by Council and the business. However, the Department's
authority does not extend to negotiating or interpreting the terms of a
revitalization agreement because the Act clearly assigns Council with this
responsibility. See §§ 12-10-60(A), -100(A). Accordingly, the ALC was
not required to defer to the Department's interpretation of the Agreement.

[2] During the time period that ESA sought JDCs, it was
doing business as ESA Services, Inc. and was a member of a group of publicly
traded companies that owned and/or operated extended stay lodging facilities.
Its parent company was Extended Stay America, Inc., and ESA was a wholly-owned
subsidiary. In May 2004, ESA was purchased by the Blackstone Group and became
a private company, and while ESA changed its name and income tax status, this
had no effect on its operations or ability to qualify for JDCs. ESA
subsequently merged into HVM, LLC, a sister company owned by the Blackstone
Group, and the resulting corporation, HVM, LLC withdrew any future claims for
JDCs under the Agreement. Apart from the three pending claims for refunds in
this appeal, no further claims for JDCs can be made by ESA.

[3] Pursuant to section 1-30-25 of the South Carolina
Code (Supp. 2009), Council is statutorily incorporated
in and administered as part of the Department of Commerce.

[4] The letter was addressed to Bill Kastler, whose
office is in Spartanburg, South Carolina, but it was actually mailed to ESA's
headquarters in Fort Lauderdale, Florida.

[5] Or $15.00 per hour based on a 2,000-hour work year,
exclusive of benefits.

[6] At the time ESA submitted its documentation, it had
created two hundred thirty new jobs and had made a capital investment of
$14,506,927.

[7] ESA requested a
refund in the fourth quarter of 2003 for $136,706 and a refund in the first
quarter of 2004 for $80,623, both which were refunded in their entirety.

[8] The large increase in employee compensation was due
to the exercise of employee stock options for approximately sixteen executives.

[9] A field audit is permissible pursuant to section 12-10-80(A)(9)
of the South Carolina Code (Supp. 2009), which states, "The department
shall audit each qualifying business with claims in excess of ten thousand
dollars in a calendar year at least once every three years to verify proper
sources and uses of the funds."

[11] We recognize that the two hundred fifteen approved
employment positions from Exhibit B correlate to the two hundred fifteen jobs
that must be created as part of the minimum job requirement. However, we fail
to see how the $15 per hour wage bracket in Exhibit B is expressly incorporated
into the minimum job requirement based on the contract's stated terms.

[12] In light of our
determination that the contract is unambiguous, we do not address the
Department's alternative argument that the ALC failed to properly apply the
parol evidence rule. SeeFutch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating an appellate court need
not address remaining issues when a decision on a prior issue is dispositive).

[13] As program manager, Calvi was authorized by Council and
the program guidelines to interact with ESA on matters pertaining to the Agreement.
Because the Department failed to present any evidence she was acting outside
the course of her employment or the scope of her authority in dealing with ESA,
we find Calvi had the authority to amend the terms of the Agreement.

[14]SeeMedia Gen. Commc'ns, Inc. v. S.C. Dep't
of Revenue, 388 S.C. 138, 149, 694 S.E.2d 525, 530-31 (2010) ("An
agency's long-standing interpretation of a statute is usually entitled to be
given deference and should not be overruled by a reviewing court in the absence
of cogent reasons, but the interpretation will not be sustained if it
contradicts a statute's plain language.").